Definitional Issues/Terminology

· the majority of those displaced outside the Federal Republic of Yugoslavia in the current circumstances are properly considered refugees - they are displaced because of conflict or on account of well-founded fear of persecution based on their ethnicity, imputed political opinion and/or religion[1]. The deportation of important numbers was one means by which the forced flight was effected. It does not change their refugee character as persons unable to return to their country for refugee relevant reasons;

· they ought to be referred to by UNHCR staff and others (NATO, OSCE, IOM and other partners in the operation) as refugees. If, however, citizens remain in the Federal Republic of Yugoslavia, they are internally displaced persons - except of course, those who are already refugees, such as the Krajina Serbs or Bosnian Serbs already living as refugees in the FRY. This group may be experiencing secondary displacement;

· the use of terms such as "deportee" or "expellee" should be avoided, in order to avoid any confusion about the true refugee character of the people affected by the current circumstances and their experience (this may be especially important for the future, with respect to treatment in asylum countries and documentation and return issues);

· the fact that these are refugees either under the 1951 Convention and 1967 Protocol or under the extended refugee definition, should inform all the actions taken by UNHCR and its operational partners; that is, it should be the backdrop to their treatment.

Access to Safety/Refoulement

· in accordance with the principle of non-refoulement, which is an accepted norm of customary international law as well as being specifically set out in article 33 of the 1951 Convention relating to the Status of Refugees, the refugees must not be returned to a country where their lives or freedom may be threatened;

· refoulement can take a number of forms, including non-admission at the frontier and interdiction at sea. Any such action would be in contravention of international law, and if done by a State party to the 1951 Convention, would be a breach of that State's obligations under the Convention.

Protection of Refugees in Host Family Situations

· where refugees are lodged with host families rather than in collective centres, there is the potential that their exposure to particular protection problems may be greater, including the risk of financial or sexual exploitation, and military recruitment. They may also lack access to information and services important to their protection needs (for example, family tracing), particularly in Albania, a country which lacks adequate infrastructure and law and order;

· given their relative isolation in host families, it is important that satisfactory arrangements are made for refugees to know how to contact agencies which can help to protect them and solve their problems and to this end, community services officers, field officers, protection officers and NGOs have a particular role to play;

· radio and television programmes and announcements, the establishment of offices or centres where those lodged in host families can go to obtain information and seek advice, as well as community projects to improve the ability of refugees and host families to cope with their situation are all possible mechanisms for enhancing protection, as is the option of movement to more secure collective centres for those experiencing difficulties in a host family situation.

Groups/Persons with Special Protection Needs

· attempts must be made (for example, through interviews with arrivals, through the registration process and through contacts with medical/other NGOs and partners) to identify and provide appropriate treatment/solutions for those with particular protection needs as soon as possible;

· in particular, unaccompanied and separated children will require quick identification, and arrangements should be made without delay for their care, tracing, protection from unwarranted evacuation and other appropriate interventions, such as provision of recreational activities and materials;

· other groups which may be identified as having special protection needs include:

· women, especially those who are single heads of households and adolescent girls (e.g. hygiene kits, reproductive health care, protection from exploitation)

· victims of torture and other severe forms of abuse, including especially victims of sexual violence (e.g. appropriate counselling, medical and other care as well as protection of privacy)

· unaccompanied elderly (e.g. support and protection from exploitation)

· those targeted for military recruitment, especially minors (e.g. particular preventive measures should be undertaken to ensure that this danger does not materialise.)

Security/Militarisation Issues

· given the situation of conflict in Kosovo province, refugee settlements must be located a safe distance from the border to avoid any spillover effects of the conflict;

· the civilian character of refugee settlements must be preserved and to this end:

· camps/settlements/collective centres should be located a reasonable distance away from the border

· military recruitment and lodging of fighters in the camps/settlements/collective centres must be prevented to the extent possible, with state responsibility for separation of armed elements from the civilian population being explicitly promoted

· particular care should be taken to ensure non-recruitment of children and adolescents (and it should be noted that the danger of this type of recruitment may grow)

· management of the sites must to the extent possible be in independent hands and disassociated from direct parties to the conflict

· all reasonable steps should be taken to ensure that assistance is not channelled out of the camps/settlements to fighters;

· if the civilian character of the settlement is threatened, consideration must be given immediately to adequate measures to address the threat (e.g. use of armed guards, change in management, identification and separation of fighters).

Documentation

· given that

· UNHCR has a role with respect to avoidance and reduction of statelessness;

· there has been relatively widespread destruction of identity and property ownership documents, and

· the government of the Federal Republic of Yugoslavia has formerly, in the context of Bosnia (and implementation of the Dayton Peace Agreement), accepted "Principles on Citizenship Legislation" that include the following: "where documentary information relating to citizenship is not accessible or cannot be obtained within a reasonable time, each State should allow such persons to provide this information by other means, including statements made by or for such persons"

it is essential that an adequate registration of refugees, in collaboration with or under the supervision of UNHCR, be undertaken as soon as possible in order to preserve information which can later be used to prove identity and citizenship;

· essential elements to record as quickly as possible include:

· name, parents' names, maiden name (if applicable)

· family composition and current location

· place of residence before displacement

· place of origin

· date and place of birth

· state of documents (in possession, left behind, confiscated/destroyed etc.)

· names, relationship, last known location of family members left behind in Kosovo or otherwise separated from the family

· names, relationship, status and addresses of family members abroad, and

· immediate circumstances of flight;

· each head of household should be provided with a copy of the family registration document, at a minimum;

· each adult refugee or displaced person should receive an identification document to show his or her status (at a minimum this could be a UNHCR letter);

· UNHCR should ensure that the registration information recorded is transmitted to and kept in a safe and neutral location (preferably in the Archives and Records Section of UNHCR headquarters in Geneva) in order to ensure both its preservation and its credibility;

· registration systems used in different countries receiving refugees from Kosovo should be compatible in order to facilitate tracing of family members.

Humanitarian Evacuation from the Former Yugoslav Republic of Macedonia

· the possibility of humanitarian evacuation is a tool at UNHCR's disposal to ensure, in these very exceptional circumstances, that effective protection is available to the Kosovo refugees until such time as they are able to return home. It should be approached, albeit within the following parameters, as such;

· the limited purpose of the humanitarian evacuation has been to reduce the number of refugees arriving in the Former Yugoslav Republic of Macedonia after 24 March 1999, in order that, in the particular circumstances of that country, it can cope with the influx of persons it is currently experiencing from Kosovo by sharing the responsibility for the care of the refugees with other states;

· standard resettlement procedures and criteria do not apply, unless required by law in the receiving countries; humanitarian evacuation does not focus, as does resettlement, on addressing individual protection needs. Rather, it moves groups of refugees so that all in need of protection can have access to safety. Its essential features are its speed and its size;

· no links should be made between humanitarian evacuation quotas and resettlement quotas, which must not be negatively effected by this emergency response;

· any evacuation must be on a strictly voluntary basis; the consent must be an informed one in the sense that the volunteers must

· know which is the destination country

· preferably be well-informed of the planned conditions of stay there

· not be subjected to pressure to accept evacuation;

· humanitarian evacuation must not be undertaken (and UNHCR should dissociate itself from evacuation) unless the following conditions are met:

· at least a rudimentary registration has occurred, recording at a minimum, the name, place of origin, family members' names and informed consent of the participant to go to the offered evacuation site

· all family members present in the Former Yugoslav Republic of Macedonia are going together; in no circumstances should families be separated against their will

· all family members are medically fit to travel, or are cleared to travel with specific medical facilities, or because the medical condition is the reason for the evacuation;

· prioritisation for participation in the evacuation should take into account:

· special medical or other needs in so far as are known, and

· family or other links in the proposed country of evacuation;

· this being said, there is a need to keep in mind the purpose of the evacuation and the importance of avoiding confusion between resettlement and this programme; reunification of immediate family members should remain a priority generally for UNHCR, but reunified families should not subsequently be split when the period of protection following evacuation expires;

· if only a rudimentary registration is possible pre-departure, a full registration is necessary upon/shortly after arrival in the destination country (see Documentation section).

Protection to be Provided to the Refugees

· as the persons displaced by the current conflict are refugees within UNHCR's mandate, ideally they should be recognised as such and treated consistently with this status;

· however, given the large numbers, the rapidity of flight and arrival and the current circumstances in the main receiving countries, it is clear that this effectively will not be possible for the majority of the displaced and that hence what is needed is a device to respond to the exceptional aspects of the problem without compromising the integrity of the Convention system;

· where Kosovar refugees are not provided with access to asylum procedures, they should at a minimum enjoy a form of temporary protection, in fact if not in name. In these exceptional circumstances, the application of the Convention could be temporarily suspended, albeit with the clear understanding that the Convention must have a place in determining protection needs at the time of return;

· the refugees must be admitted to safety and treated in accordance with the following minimum standards:

· protection from refoulement, preferably with a legal or other form of enforceable basis for remaining in the country of protection;

· respect for basic human rights and dignity, including access to means of subsistence (access to work or social services, or to international assistance), shelter, health care, clothing, and depending on the length of stay, some form of education for children;

· the ability to join families when different members are enjoying protection in different countries, both in the context of humanitarian evacuation and otherwise. In this regard, states should exercise the highest degree of flexibility in facilitating bilaterally the reunification of separated family members;

· the link to 1951 Convention must be recognised and respected: beneficiaries are not barred from applying for asylum when their provisional protection ends;

· where one or more beneficiaries express serious, protection-related concerns about return when their protection ends, these should be considered by the authorities, usually within the framework of the 1951 Convention;

· refugees should normally enjoy the right to choose their place of residence and to move freely within the territory of the country of asylum, subject only to the regulations applicable to aliens generally in the same circumstances;

· it is, nonetheless, accepted that in situations of large influx, there may be specific legitimate concerns of the country of asylum which might warrant some limited restrictions. This will normally occur in the context of refugees living collectively, especially in situations of mass influx where other living arrangements may not be feasible or available. In such a case, however, refugees and asylum-seekers should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order, or their own security;

· in any event, refugees must have access to UNHCR and the ability to contact advisers and family members and generally to communicate with the outside world.

· these basic standards are the bare minimum which should be accorded; the treatment provided for the Kosovars should in no case be less than what is spelled out in these guidelines, and UNHCR would hope that it would in fact be of a higher standard in most cases.

Tertiary Movement

· some concern has been expressed that refugees evacuated under the humanitarian evacuation scheme might move in an irregular manner from their evacuation country to other countries;

· in accordance with the stated policy on those who move after having already found protection in an asylum country, there should be an analysis of the refugees' reasons for moving. If these are protection related and justified, those who have moved should be provided with protection in the final destination country;

· if there is no protection-related justification for the move, the refugees may be returned to the country of evacuation to resume their protected status there, and evacuating states should readmit them to the territory and to the same status they enjoyed prior to their departure.

Resettlement

· resettlement is geared primarily to the protection needs of individual refugees under UNHCR's mandate whose lives, liberty, safety, health or other fundamental human rights are at risk in the country where they sought refuge. The resettlement decision is usually taken when there is no alternative way to guarantee the legal or physical security of the person concerned;

· the resettlement option may be pursued for individual cases of those fleeing Kosovo on the basis of need, and identified cases should be referred to the Resettlement Section in DIP for consideration and, if appropriate, resettlement action;

· UNHCR's regular resettlement criteria and policy will be applied in dealing with such cases;

· resettlement should not be "a victim" of humanitarian evacuation, either through regular resettlement quotas being reduced to accommodate humanitarian evacuation, or through resettlement not being available to individual refugees because temporary protection is the norm;

· family reunification is an important way to preserve or restore the basic dignity and in some cases enhance the security of a refugee's life. In this context it is an element in resettlement and should continue be so for Kosovars.

Questions of Status Determination

· the majority of those fleeing Kosovo will not, for the time being, have their status determined in individual proceedings. Most will be afforded some form of provisional protection, until such time as the situation stabilises. Nevertheless, there are status determination questions which are starting to be raised, even in the context of provisional protection. The following comments address these issues, but are not exhaustive;

· persons fleeing military service - whether they are deserters from service or are evading a call-up, are not normally, merely on account of their refusal to perform military service, considered to be refugees. However, draft evaders and deserters may qualify for refugee status if they are conscientious objectors and no alternative service is available; or if the penalty they would suffer for their refusal would be disproportionately severe on account of a Convention reason (e.g. because of their ethnicity or religion). Conscientious objection includes cases where a refusal to perform military service is justified on other human rights grounds - for example, that they would be required to engage in war crimes or crimes against humanity as part of their service;

· given the nature of the present conflict - which involves reliable reports of serious human rights violations and other crimes by parties to the present conflict, many based on grounds of ethnicity or imputed political opinion - there will be cases where refusal to perform military service could justify refugee status;

· equally, the reliable reports of human rights violations committed by supporters of both sides in the conflict also suggest that there may be cases which will warrant exclusion of the individual on the basis of article 1 (F) of the 1951 Convention. In cases where there are clear indications of factors which might lead to excluding an individual from refugee status, full interviews ought to be undertaken at as early a stage as possible by the appropriate authorities and the cases reviewed, with a view to identifying those who should be excluded.

Return Considerations

· it is clear that return is certainly not something to be promoted now, prematurely, for reasons of safety. It is, nonetheless, important to begin early the thinking process regarding return, in order to position the Office to take appropriate steps in a timely manner. The following is by no means an exhaustive list, particularly as regards Kosovo-specific considerations; these are no more than general framework issues;

· return will be the preferable durable solution for the vast majority of those displaced by the current circumstances in Kosovo. As mandated by its Statute, UNHCR will have the responsibility to ensure that return is carried out in safety and with dignity, and to conditions which will be sustainable, non-discriminatory and respectful of the rights of the returnees;

· return in safety signifies return which takes place under conditions of legal safety (such as amnesties or public assurances of personal safety, integrity, non-discrimination and freedom from fear of persecution or punishment upon return); physical safety (including protection from armed attacks, and mine-free routes and if not mine-free then at least demarcated settlement sites); and material security (access to land or means of livelihood);

· return with dignity requires that returnees are treated with respect and full acceptance by their national authorities, including the full restoration of their rights;

· in the specific circumstances of return to Kosovo, the following elements will be particularly important:

· the causes which led to the exodus should be alleviated;

· the principle of family unity must be respected;

· respect for the right to return to the place of origin must be guaranteed;

· amnesties and official guarantees of non-arrest and non-prosecution for certain crimes should be given (there will be difficult issues to determine in the consideration of amnesties, including both the crimes to which they will apply and the efficacy of the guarantees provided);

· specific, articulated guarantees for recognition of citizenship and acceptance of available evidence of identity and nationality should exist (again, the implementation and enforceability of the guarantees will be key);

· agreed implementation of a robust monitoring system must be guaranteed, preferably by a strong and respected international presence;

· re-building judicial capacity and respect for the rule of law should be in train;

· re-creating the infrastructure, and re-building homes which have been destroyed by the conflict will be a key factor in making return sustainable;

· return from outside the region raises additional issues, including access for individuals to 1951 Convention protection, as necessary.

Standards and Legal Advice Section

Department of International Protection

30 April 1999

[1] This is the case for the Kosovo Albanians. Others fleeing the province may be Convention refugees as well, for instance, Serbian and other conscientious objectors. Others, Serbs and other ethnic groups, may be refugees in the broader mandate sense, that is, as victims of indiscriminate violence. Still others may not be refugees, because, for example, they are excluded from protection by the terms of the Convention.